Glover v Simon Blackwood (Workers' Compensation Regulator) - [2015] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215
PARTIES:	Glover, Lisa (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2015/115
PROCEEDING:	Appeal against a decision of the Workers' Compensation Regulator
DELIVERED ON:	18 December 2015
HEARING DATE:	27 July 2015
HEARD AT:	Brisbane
MEMBER:	Industrial Commissioner Black
ORDERS :	1. Appeal dismissed 2. The decision of the regulator dated 8 April 2015 is confirmed 3. The matter of costs reserved
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION – jurisdictional challenge - appeal prosecuted in respect to an injury which was not assessed by either WorkCover in the first instance or the regulator on review – whether Commission had power to decide on appeal a question which was not answered by either WorkCover or the regulator.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 32, s 550, s 558
APPEARANCES:	Mr M. Smith, Counsel instructed by East Coast Injury Lawyers for the Appellant. Mr F. Lippett, Counsel directly instructed by the Workers' Compensation Regulator, for the Respondent.

Decision

Background

Lisa Glover ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject her application for compensation for a neck injury as a result of a work related incident on 13 September 2013.

The appellant was employed by Lorna Jane Pty Ltd as a stock controller. She sustained an injury on 13 September 2013 when she lost balance while using a ladder to retrieve a box from shelving. The appellant said in her evidence that she felt immediate pain in her shoulder and it felt like she had "pulled something". She did not immediately attend on a doctor because she just thought that she had pulled a muscle. The appellant did however attend on her General Practitioner, Dr Botha, on 23 September 2013 in respect to the injury. According to the medical records of the consultation the appellant told Dr Botha that she had "injured her right shoulder when she lifted a heavy box at work 10 days ago".
The appellant lodged an application for compensation with WorkCover on 23 September 2013. In response to a question asking the applicant to specify the nature of the injury and the part of the body affected, the appellant wrote "shoulder, muscle/tendon strain (non-traumatic)". An X-ray and ultrasound of the right shoulder were taken on 24 September 2013. The X-ray did not reveal any fracture or abnormality. An ultrasound finding of normal appearance was entered in respect to the rotator cuff tendons and biceps. While subacromial bursa was normal in appearance at rest, dynamic assessment induced "bursal and tendon impingement but no symptoms of pain".
A workers' compensation medical certificate issued by Dr Botha on 26 September 2013 included a diagnosis of "impingement right shoulder". The worker's stated cause of injury was "lifted a heavy box at work and immediately felt pain" in the right shoulder. On 27 September 2013, WorkCover accepted the appellant's application for compensation for an "impingement right…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glover v Simon Blackwood (Workers' Compensation Regulator)

Details

AGLC: Glover v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 215
Case: [2015] QIRC 215
Decision Date: 18 December 2015

CaseChat Overview and Summary

Glover appealed against the decision of Simon Blackwood, the Workers' Compensation Regulator, concerning a workers' compensation claim arising from an injury sustained during employment. The central issue in the dispute was whether the appellant's disc bulge injury was related to her employment under section 32 of the Workers' Compensation and Rehabilitation Act. The matter was heard in the Victorian Civil and Administrative Tribunal.

The primary legal issue was whether the Commission had the authority to decide on an appeal a question that neither WorkCover nor the Regulator had answered, specifically whether the appellant's disc bulge injury was related to her employment. The appellant argued that the Commission had jurisdiction to consider her claim, while the Regulator contended that the Commission's jurisdiction was limited to the specific question of causation.

The Tribunal found that both WorkCover and the Regulator had only determined the question of causation concerning the disc bulge injury, and not the appellant's soft tissue injury. The Tribunal concluded that its jurisdiction, as well as that of the Regulator, was confined to the specific question of whether the disc bulge injury was related to the appellant's employment. The Tribunal held that there was no basis to expand its jurisdiction to consider the appellant's soft tissue injury. Consequently, the Tribunal dismissed the appeal and confirmed the Regulator's decision dated 8 April 2015.

The Tribunal issued three orders: (1) the appeal was dismissed; (2) the decision of the Regulator dated 8 April 2015 was confirmed; and (3) the matter of costs was reserved.

Orders

Orders of the court

1. Appeal dismissed

2. The decision of the regulator dated 8 April 2015 is confirmed

3. The matter of costs reserved

Background

Background to the litigation

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Evidence

Evidence Before The Court

In this regard the regulator noted that while there had been some dispute about the appropriate diagnosis for the appellant's injuries, the relevant question was whether the disk bulges identified in the appellant's cervical spine were related to her employment pursuant to s 32 of the Workers' Compensation and Rehabilitation Act ("the Act"). The regulator answered this question in the negative after making a determination that the appellant had suffered a personal injury diagnosed as "mild disk bulges at levels C2/3, C3/4, C4/5 and C5/6".Appellant's Evidence The appellant said that she first experienced neck pain about four or five days prior to visiting her physiotherapist on 9 October 2013. She had not experienced neck pain prior to this time. Her neck pain has been treated by physiotherapy and participation in pilates programs. The delay in the onset of neck pain was sought to be explained by reference to a preoccupation with shoulder pain and the possibility that neck pain had been masked by the shoulder pain. The appellant had regularly completed gym sessions prior to the work incident on 13 September 2013 and resumed these visits a couple of months after the incident. At these visits she lifted light weights, participated in pump classes and completed some outside jogging. She had attended yoga classes prior to the work incident and resumed yoga a few months after the incident, but had to modify her positions. She described her participation in yoga after the incident as "sporadic". She began playing touch football in February 2014 and continued playing until June 2014. The appellant said that she has only been able to complete one full pump class since the incident. However she continued to attend at the gym where she does some weight work and uses some equipment including walking or jogging on a treadmill. She no longer does the weight work she used to be able to do and instead just uses a machine for legs and back. She said that she found shoulder presses too hard. The appellant described the extensive and adverse impact of neck pain since its onset in early October 2013. Her description suggested that there was very little that she could do in the course of daily activities which would not cause neck pain. She said that "every day in some way, shape or form I'll be restricted" (T1-15). A difficulty in evaluating this evidence arose from the appellant's failure to disclose in specific terms when she experienced significant episodes of neck pain. The vagueness around the temporal connections led to significant inconsistencies in the evidence. A questionnaire included in Exhibit 3 was completed by the appellant on 2 January 2014. According to the form, the questionnaire had been specifically designed to help the physiotherapist determine how the neck pain is affecting the patient's ability to manage in everyday life. The appellant in answering the questionnaire said that her pain was very mild at the moment, that she can look after herself normally without causing extra pain, she can read as much as she wants with no pain in her neck, she can concentrate fully when she wants to without difficulty, she can do as much work as she wants to, she can drive her car without any neck pain, her sleep is slightly disturbed, she has slight headaches infrequently, and she is able to engage in most but not all of her usual recreational activities.

Decision

Reasons for decision

Findings on the evidence adverse to the appellant's prospects are set out below:(i)Despite the medical evidence favouring a position that neck pain caused on 13 September 2013 would have surfaced within ten days, there was a three week delay in the onset and reporting of neck pain or symptoms which was not adequately explained; (ii)On the medical evidence both the shoulder impingement and any soft tissue neck injury arising from the work incident on 13 September 2013 should have resolved by mid-2014;(iii)The factual evidence supported a finding that the appellant's neck and shoulder symptoms had resolved by the end of June or early July 2014;(iv)That while it was possible that the appellant may have aggravated the work related injury sustained on 13 September 2013 after resolution of symptoms, no evidence was adduced supporting a conclusion that any such aggravation was work related; (v)The July and August 2014 radiological findings did not establish a causal connection between the appellant's neck condition and her employment. The only evidence of any neck condition was provided by an MRI taken in August 2014 which established that the appellant's neck condition was degenerative and not related to work;(vi)The MRI finding of disc bulges on 8 August 2014 was consistent with the symptoms reported by the appellant of neck stiffness, neck soreness, and restriction on lateral neck movement;(vii)On Dr Botha's evidence that facet joint irritation symptoms could imitate disc protrusion or disc bulge symptoms circumstances, it was possible that the physiotherapist's October 2013 diagnosis of facet joint irritation as the cause of the appellant's neck pain may not have been accurate, and that disc bulges were the cause. The appellant speculated to this effect in her consultation with Dr Botha on 3 September 2014 where the consultation notes include an entry to the effect that the appellant told Dr Botha that Ms Taylor thought that the appellant "may have a bulging disc from the first time she treated her";(viii)While it was possible that, had the disc bulges identified on 8 August 2014 developed before 13 September 2013, and could have been aggravated by the incident at work, this case was not pursued in the appeal. Decision The regulator's jurisdiction was limited to making a determination about whether the appellant's disc bulge injury was causally connected with her employment pursuant to s 32 of the Act and the Commission's jurisdiction is confined to a consideration of the same question. There is, therefore, no capacity to make a decision in respect to the appellant's soft tissue injury. If jurisdiction does exist, my decision remains unaltered for the reasons given. The appeal is dismissed and the decision of the regulator dated 8 April 2015 is confirmed. I order accordingly.

Ratio Decidendi

Legal Principle Established

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